COURT FILE NO.: 361/08

DATE: 2012-09-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROBERT DICKIE and KAREN DICKIE

Plaintiffs

• and -

CHARLES MINETT

Defendant

Counsel: Patrick Morris, for the Plaintiffs Andrew Lundy and Mario Delgado, for the Defendant

HEARD: June 4, 5, 6, 7, 8, 14, 2012

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] This is a medical malpractice case. On May 11, 2006, the plaintiff Robert Dickie (Robert) had his three wisdom teeth extracted by the defendant who is an oral and maxillofacial surgeon. During the extraction of the last tooth, being tooth 48, and as a result of the extraction procedure, Robert’s jaw was broken.

[2] Karen Dickie (Karen) is the spouse of Robert.

[3] The plaintiffs alleged that the defendant failed his duty to them in three areas. They argue the surgery was unnecessary, that Robert did not give an informed consent to the procedure and that the defendant was negligent in the extraction of the wisdom teeth. As a result of the fracture, Robert’s jaw was wired shut for approximately eight weeks during which period he was unable to work and was in a great deal of pain. After the wires were removed, the pain subsided over a period of time. However, Robert is left with permanent numbness and tingling in the right side of his lip and chin. Prior to the surgery, Robert was an accomplished bagpipe player but, as a result of the permanent damage, he can no longer play the bagpipes with the proficiency and expertise required to play at the competitive level.

[4] The plaintiffs ask the court to draw adverse inferences for two reasons. The first is that the defendant has no independent recollection of the consultation or the surgery involving Robert. The second is that the defendant did not fulfill his discovery undertaking to use his best efforts to identify the nurses present during the surgery. The plaintiffs’ counsel submits that the inference to be drawn is that the defendant is “hiding” or failing to disclose evidence which might suggest negligence.

[5] The defendant denies the plaintiffs’ claims and submits the surgery was necessary, the consent informed and that the fracture did not result from his negligence.

EVIDENCE

Robert Dickie

[6] Robert is a labourer in the construction industry and has been playing the bagpipes for over 32 years. He has competed at the professional level as an individual and as a member of various pipe bands. Prior to his dental surgery he practiced and played the pipes four to five times per week and more often in the summer during competitions.

[7] At all material times, Robert’s family dentist was Dr. Krikorian whom he was seeing twice per year. On January 15, 2006, Robert went to his dentist for a regular check-up and cleaning.

[8] Dr. Krikorian took x-rays as part of his examination and advised Robert that his wisdom teeth were impacted. Robert was advised that he should have them removed. Robert accepted that advice.

[9] Dr. Krikorian gave Robert a list of four or five oral surgeons and Robert selected the defendant as the one he would go to. He made his decision based on the suggestion of Karen who had been treated by the defendant in the past.

[10] Robert testified that, in January 2006, his teeth were not bothering him.

[11] Robert first attended the offices of the defendant on March 16, 2006. He was accompanied by Karen. Robert said that the defendant examined him and looked at the x-rays and advised Robert that he should have the remaining three wisdom teeth removed.

[12] Robert testified that they discussed the procedure and the period of recovery. He said that his wife was with him during the post examination consultation.

[13] The teeth to be removed were one upper and two lower wisdom teeth. The fourth wisdom tooth (upper) had been extracted previously.

[14] The defendant showed Robert what it meant to have compacted molars. Robert testified that the defendant did not ask him about any of his extra-curricular activities. He testified that the defendant explained the procedure about putting Robert “under” general anaesthetic, removing the teeth and that the recovery period would be three to four days.

[15] Robert testified that the defendant did not explain the risks, such as possible numbness and a broken jaw. Robert did not recall if the defendant asked if he had any symptoms. Robert’s only question was when it could be done.

[16] Robert accepted the defendant’s advice and the appointment for extraction of the three wisdom teeth was scheduled for May 11, 2006. He was told the surgery would take one hour.

[17] On the date set for the surgery, Robert attended the defendant’s office with Karen. He testified that before he saw the defendant on this day he was asked by the nurse to sign a paper. He did not know what the paper was and did not get a copy. The nurse offered no explanation.

[18] Robert testified that he was then taken to see the defendant who told him to relax, that everything would be fine. He said that he was taken into the room where the surgery would be conducted and was “knocked out”. He woke up four to five hours later and could not talk or open his mouth.

[19] He does not recall anything said to him but recalls a commotion and remembers Karen helping him into their car so that he could be taken to the Guelph General Hospital. He admits he was still groggy at this time and cannot recall everything that happened.

[20] The surgery had been scheduled for 11:30 a.m. and Robert testified that he was not really aware of what was going on until almost 12 hours later. He believes he was admitted to the coronary care ward and was in the hospital for three days.

[21] Robert recalls that the defendant visited him in the hospital on the night of his surgery but doesn’t recall the conversation. He believes he was hospitalized because of extremely high blood pressure. He believes he was told by a nurse that his jaw had to be wired shut because it was fractured and that his blood pressure had shot up.

[22] When Robert returned home he was not able to work. It was difficult to talk or eat. His jaw was very painful. As he could not eat properly, he did not have the energy necessary for construction work. He said that he lay around the house, uncomfortable and miserable.

[23] The defendant continued to see Robert and it was estimated he went back to see him six to eight times. Robert testified that the wires were removed July 12th and that initially he could not move his mouth but that there was daily improvement thereafter and within a week he could open his mouth fully.

[24] Robert testified that, while his jaw was wired shut, he drank Boost, a nutrient supplement, and ate mashed potatoes. He had trouble sleeping. Robert had a partial plate with respect to his four front teeth and was unable to wear it while his jaw was wired.

[25] Robert testified that he was off work for the entire eight week period. He had started a new job in 2006 but lost it as he had to take so much time off. He was, however, able to find another job for slightly less wages and worked that job for the rest of the year. In 2007, Robert started his own concrete forming business.

[26] Robert believes he saw the defendant one more time after the wires were removed. He also went back to see his family dentist, Dr. Krikorian, for a regular check up. Exhibit 1 is the document brief filed by the plaintiffs. At Tab 3 therein are the clinical notes for Dr. Krikorian, who noted, on October 26, 2006, that Robert was still tender in the lower jaw. Robert testified that the tenderness lasted the best part of a year.

[27] Robert is left with numbness or tingling in his lower lip and chin on the right side. He is unable to play the bagpipes properly as the numbness prevents him from forming a tight seal with his lips around the blow pipe. He cannot produce the “great big sound” he once could. He now only practices one time per week with a band. He has given up playing at weddings and funerals. The enjoyment he got from playing the pipes is greatly decreased.

[28] With respect to the out of pocket damages, at Tab 7 of Exhibit 1 is Robert’s lost wage calculation which totals $11,278.00. Tab 9 is a calculation of his travel expenses incurred as a result of all the trips to see the defendant after May 11th. This head of damage totals $287.62. There is also a modest drug expense claim for $47.62.

[29] Robert testified that had he been told his jaw could have been broken he would not have had the surgery done. He was not suffering from any symptoms.

[30] On cross examination, Robert could not recall if the defendant took an x-ray but did recall looking at x-rays with him. He agreed he did not have a complete memory of what happened at the consultation. He acknowledged that at discoveries he said that he and the defendant had a discussion about the procedure and then x-rays were taken. He now believes that no x-rays were taken on that occasion.

[31] Robert agreed that it was his understanding now that Dr. Krikorian sent x-rays to the defendant for review.

[32] Robert agreed that Dr. Krikorian had been his dentist since he was 17 years old and that Dr. Krikorian had performed extractions, root canal, filings and provided dentures. He agreed that he routinely accepted his dentist’s advice and that he trusted his dentist. He had previously never turned down a dental procedure because of the possible risks.

[33] Robert agreed that, up to the incident in issue, he would go ahead with recommended dental procedures without concern. He further agreed that Dr. Krikorian told him that his wisdom teeth had to be extracted or there would be problems in the future. He agreed he relied on the advice of his dentists when he decided to pursue the extractions.

[34] Robert acknowledged he had infections around his teeth previously but did not know if it involved a lower wisdom tooth. He said that he was told to have the teeth extracted because he was getting older.

[35] Robert was referred to Exhibit 5 which is the clinical notes and records of Dr. Krikorian. On April 11, 2005, there is a notation referring to pus in the lower right area in the vicinity of tooth 48, being the lower right wisdom tooth. It was this tooth that was being extracted when Robert’s jaw was broken. Robert acknowledged having an infection in that area. He did not recall telling the defendant that he was told by Dr. Krikorian that he noted fluid in that area.

[36] Robert testified under cross-examination that if he were told of a risk that was unacceptable to him he would say no to the procedure. He agreed he had a wisdom tooth extracted previously but testified that it was so long ago that he could not remember discussing the risks. He agreed that up until the incident he had no memory of a bad tooth extraction.

[37] He agreed that he described his symptom now as a very slight numbness, very faint pins and needles. Robert testified that he had full mobility of his mouth and lips. He testified his symptoms plateaued about three years ago. He was told by the defendant that it would take up to six months for the healing to be complete. He has not sought any treatment from any other oral surgeon since he last saw the defendant.

[38] Robert agreed that the defendant likely said more to him than he can recall. He agreed it was possible that he filled out a medical history form and agreed that he advised the defendant on the type of work he did. He recalled talking to the defendant about his medical history. He agreed they may have discussed specifics that Robert cannot remember.

[39] Robert did recall on cross-examination the defendant saying that there was a risk that during extraction the adjacent teeth could be damaged. He recalls talking about the swelling and looking like a chipmunk. It had been Robert’s plan to take three to four days off work post surgery.

[40] Robert denied that the defendant warned him about possible nerve damage and jaw fracture because, had he been so advised, he would not have had the surgery. Robert agreed that he signed the consent to the surgery but said he did not read it first. He agreed that it was there for him to read and that there was no pressure put on him to sign.

[41] Robert agreed that, had the defendant asked for his consent to do any necessary additional measures, he would have said yes. While he trusted the defendant, his consent would not have gone as far as having his jaw wired shut. Robert trusted the defendant to do the surgery that day but said he was nervous and anxious.

[42] Robert agreed that, after deducting his wife’s benefit carrier’s payment, they were out of pocket $424.73 in regards to the cost of the surgery.

Karen Dickie

[43] Karen is employed as a custodian for the local school board. She acknowledged going with Robert on January 6, 2006 to see Dr. Krikorian. She was there when Robert was told he would need to have his wisdom teeth removed. She testified Robert was told he needed to go to an expert. She told Robert that he should choose the defendant as he was the best. She had no knowledge of the other oral surgeons recommended.

[44] Karen went with Robert to his consultation with the defendant on March 16, 2006. Karen testified that initially she was not part of the consultation but that she was called in to look at the x-rays with the defendant and Robert. She testified that, on that occasion, there was no discussion of the procedure or the risks. After the consultation, the appointment was made for the surgery on May 11, 2006.

[45] The surgery was scheduled for 11:15 a.m. and Robert was taken from the reception area at 11:10 a.m. Karen waited in the reception area for a number of hours, being told at each inquiry that it would be a little while longer. At 4:00 p.m. she was told the doctor would be out shortly. Thereafter, she was told by a nurse that Robert’s jaw had been broken and wired shut and that he would have to go to the hospital.

[46] Karen drove her husband to the hospital and said to that point they had had no conversation with the defendant about what had happened. She did not recall seeing the defendant at the hospital and didn’t recall talking to any doctors or nurses at the hospital. Robert was in the hospital for three days.

[47] Karen testified that she took her husband home and that he was drugged up and miserable. He couldn’t eat or chew and everything had to be in liquid form. She testified that Robert was in constant pain. Within two weeks of having the wires removed, Robert was back to his old self. She said that after Robert talked of a little pain and tingling. She confirmed how important playing the bagpipes was to Robert and that, since the surgery, he doesn’t play as much.

[48] On cross-examination, Karen agreed that Dr. Krikorian told them that Robert had to have the wisdom teeth pulled or there would be other dental problems. She confirmed that she had good treatment from the defendant when she was a patient of his. She trusted the defendant to provide competent treatment.

[49] Karen was adamant that the defendant did not talk to her before she took her husband to the hospital. She did admit it was possible that the defendant came to the hospital on the evening of May 11th and spoke to them. Karen said that she had no plans to take any time off work to care for Robert. She testified that she had to call her employer and arrange to take a few days vacation time.

Thomas William McKean

[50] After a voir dire, this witness was qualified by me to give expert testimony. He was the expert retained by the plaintiffs and was qualified to give opinion evidence on the subjects of dental trauma, wisdom teeth and their extraction and general dental procedures. His curriculum vita is set out in Tab 6 of Exhibit 8.

[51] Dr. McKean graduated as a doctor of dental surgery in the mid 1960’s. He was qualified to practice dentistry. He is not licenced as an oral and maxillofacial surgeon and did not pursue the academic and residency program to be qualified as such.

[52] He did, however, throughout his practice, perform oral surgeries and specifically, wisdom teeth extractions. He practiced dentistry for 40 years and was on staff at various hospitals. He testified that, for over 35 years, he extracted on average 12 wisdom teeth per week in hospital and, as well, did extractions at his office.

[53] He was most recently associated with North York General Hospital and was part of a team attending to high risk mouth and teeth trauma. He was chief of dentistry at the hospital from 1970 to 1984. Since then he has been on their general staff.

[54] Dr. McKean testified that, when he started practicing, there was no specialty program in the field and that he simply chose to do it.

[55] Dr. McKean testified that he presented papers and lectured on the Management of Dental Trauma, the last time being in 2002. He has not published any articles in relation to the extraction of wisdom teeth.

[56] Other dentists would refer patients to Dr. McKean to have teeth extracted.

[57] Dr. McKean testified that, with respect to extractions, his patients were usually 18 - 22 years of age, when such surgery was not as difficult. The bones were the softest and the roots not fully developed. He has had no training in nerve repair but had assisted in jaw surgeries to correct jaw deformities.

[58] It is noted that, for the most part, for the last few years Dr. McKean has been retired from active surgery.

[59] Dr. McKean was qualified as an expert based on his years of experience.

[60] Exhibit 8 is the dental legal reports of Dr. McKean.

[61] At the request of plaintiffs’ counsel, Dr. McKean examined Robert on May 13, 2008. He was examined and a panoramic radiograph (x-ray) was taken. Robert was asked 33 prepared questions and his answers were recorded and read back to Robert. He was given a copy of the questions and answers and was asked to review them and advise by the end of the day of any corrections.

[62] The questionnaire and the answers were filed as Exhibit 4. It is clear from the questionnaire that the questions are directed towards such things as tooth trauma and are not specific to molar extraction.

[63] Dr. McKean was also provided with the clinical notes and records of the defendant. Dr. McKean testified that he also had copies of radiographs as set out in Exhibit 1 and that the impacted wisdom teeth were obvious.

[64] During his voir dire, the doctor testified that the Dickie extraction was routine. The next day, however, while testifying, he changed his opinion after having reviewed further evidence that the extraction was difficult and was a complicated one. He denied, however, that this change in opinion would change his expert opinion as to the standard of care.

[65] Dr. McKean testified that he has never broken a jaw during a wisdom tooth extraction and does not know anyone who has.

[66] He testified that he confirmed with a pin that Robert had numbness on the lower right side of his chin. He testified that the affected nerve is the mandibular nerve and that it ran through the fracture. It was his opinion that the numbness was permanent.

[67] Dr. McKean testified that the jaw repair performed by the defendant was excellent and the resulting occlusion was excellent as well. He testified that he had difficulty reading the defendant’s clinical notes because he used so many short forms.

[68] Dr. McKean testified that prior to such a procedure he would take a detailed medical history from the patient and would inquire as to his occupation. He would ask whether the patient played a musical instrument. He would warn the patient of possible numbness and infections. Numbness, he testified, represents nerve damage.

[69] Dr. McKean testified that he would never have warned Robert of the risk of a broken jaw. He said he might if he knew the patient played a woodwind instrument but that the risk would be very remote.

[70] Dr. McKean testified that, because Robert was a musician, he believed it would be below the standard of care not to warn of a possible jaw fracture.

[71] With respect to the surgery, he would first cut a flap to expose the crown of the tooth. He would probe around to see how much bone is in issue. He would use a tool called an elevator to luxate around the tooth to mobilize the tooth. He would start with the smallest elevator and then work up to the size needed.

[72] He would then drill and cut the crown into sections and then use an elevator to loosen the sections. The tooth may need to be cut more than once to create a number of sections for removal. Dr. McKean testified that luxating takes an application of force and that splitting the tooth more than once hopefully reduces the amount of force necessary. It was his opinion that Robert’s tooth would likely require two cuts creating four pieces.

[73] Dr. McKean could not determine what procedure the defendant used even after receiving a typed version of the defendant’s clinical notes.

[74] Dr. McKean confirmed that it was during the extraction of tooth 48 that the fracture occurred. The other two wisdom teeth had already been extracted without incident. He could not determine when and how the defendant luxated the tooth.

[75] Dr. McKean did say that the notes indicated there was a surgical section of the two lower third molars on each side and that meant to him the teeth were split. From that he inferred that the split was not done ideally, otherwise the jaw would not have broken. He testified that the notes of the defendant do not assist him in determining how the jaw was broken.

[76] It is the opinion of Dr. McKean that the defendant did not meet the standard of care because, if the surgery was done properly, the jaw would not have been broken, nor would Robert have suffered numbness. He testified that, if you do not have the skill, do not do the surgery and that the creation of more sections would mean the use of less force.

[77] In his report of May 23, 2008 (Exhibit 8), Dr. McKean wrote on page 5, under Comment, that the teeth were difficult to remove. It would appear he was referring to the note in the defendant’s clinical notes that all three teeth had ankylosed. It is my understanding that this means the roots have fused with the bone. He also indicated, at the top of the page, that the defendant’s notes seem very complete. He could not tell from the reports how many cuts and sections were made to tooth 48 and how much force was used.

[78] At pages 6 and 7 of his report, Dr. McKean sets out his summary and conclusions. He states that the defendant, Dr. Minett, is 100% liable for the fractured jaw. He opines that you can extract tooth number 48 without fracturing a jaw. There is no doubt about these conclusions. The issue is whether there was negligence.

[79] It would appear to be Dr. McKeon’s opinion that, because there was a fracture, there must have been negligence. In his testimony, he even said it must be negligence that caused the jaw to fracture because he has never done so.

[80] The standard of care considered by Dr. McKean would appear to be based solely on his own experience.

[81] Dr. McKean was also asked by plaintiffs’ counsel to review the report, dated October 7, 2009, of Dr. Blanas, the expert retained by the defendant. Dr. McKean did so in a letter or report, dated April 22, 2010. He takes issue with the fact that Dr. Blanas never examined Robert and for him to offer an opinion is ridiculous. Dr. McKean also noted that Dr. Blanas never mentioned the permanent numbness of his lip.

[82] Dr. McKean, in his second report, also refers to the extraction as routine. At the top of page 2, he opines:

Obviously if Dr. Minett extracted the tooth properly, Mr. Dickie’s jaw would not have been broken and he would not have been left with a permanent disability, a ‘numb lip’.

[83] He again references not having caused these complications when conducting his own extractions, implying, therefore, the numbness and the fracture must be as a result of negligence.

[84] It is noted that, on page 2 of his second report, Dr. McKean states that “Dr. Minett’s surgical technique was below the standard of the R.C.D.S.O.” He testified in court, however, he was unaware of the standards of the Royal College of Dental Surgeons of Ontario.

[85] Dr. McKean also states that, with respect to informed consent, Dr. Minett exceeded the standard since he does not believe it necessary to discuss the possibility of a broken jaw because it is too remote.

[86] Dr. McKean opined that Dr. Blanas’ opinion has no basis in fact or the R.C.D.S.O. Guidelines. He attached to his report a publication of the College entitled, “Informed Consent in 2001: Don’t leave the office without it.” Dr. McKean then stated that this publication refutes Dr. Minett’s position that he obtained the informed consent of Robert without providing the detail as to how. Further, he seems to rely solely on what Robert allegedly told him to reach the conclusion there was a lack of informed consent.

[87] On cross-examination, Dr. McKean testified that, when he enlarged the x-rays provided to him, he changed his opinion to that of a complex extraction. This step was taken between the first and second days of his testimony.

[88] The doctor agreed that, in order to review the procedure of the defendant, it would require the review of diagnostic quality x-rays. He testified that, when preparing his report, he did not consider the x-rays since, without enlargement, they were not of diagnostic quality.

[89] Dr. McKean acknowledged he did not have the typed copy of the defendant’s clinical notes until after he had done his reports.

[90] Dr. McKean acknowledged that, with respect to the extraction of an upper molar, there is a risk of creating a fistula to the sinuses. He stated this is a low risk and he would not warn of this risk. He also said that he would not warn of the risk to adjacent teeth. He did testify that he would warn of the risk of temporary numbness from swelling or infection.

[91] Dr. McKean was asked whether periodontal pockets are breeding grounds for bacteria and he answered ‘yes’. The measuring of the depth of the pockets is a diagnostic tool for assessing this disease. If the pockets are 9 or 10 mm deep, it suggests periodontal disease. The doctor was not aware that such disease could cause bone loss so as to weaken the jaw bone. He noted he had never seen the notes of Dr. Krikorian which were made Exhibit 5.

[92] Dr. Krikorian noted relatively deep periodontal pockets around tooth 47, next to the tooth in issue, number 48. While Dr. McKean testified that such disease would cause bone loss, he had never experienced such that it would weaken the lower jaw.

[93] On his continued cross-examination, Dr. McKean admitted that there is no specific R.C.D.S.O. standard of care for a wisdom tooth extraction. When asked if he was aware of the literature that suggests, by statistical data, the risk of permanent nerve damage is 1 in 700, he answered, “If you say so.” The doctor then stated that the risk of permanent nerve damage is not something he would advise a patient.

[94] In discussing the luxating of a tooth, Dr. McKean acknowledged that force cannot be measured and that he has never seen a reference to an amount of force. Force is required to remove a tooth and the amount of force would vary from tooth to tooth. The determination of the force to be used is a matter of clinical judgment. It was also agreed that a surgeon would have regard to the amount of force needed to remove the other wisdom teeth. In this case, all three were fused to the bone.

[95] Dr. McKean was then referred to a number of written texts and authorities. Exhibit 12 is a book entitled, Oral Surgery 4th Edition, by Kurt H. Thoma. At page 263, the author stated, “Complete fracture of the mandible rarely happens but can happen in cases where the patient is older and because of the alkalosis of the tooth.” Dr. McKean agreed with the author.

[96] Exhibit 13 is the text, Clinical Dentistry, Volume E, by Dr. Clark. At page 9 under Complications, the author references the possibility of fractures, especially with deeply embedded molars. Dr. McKean agreed with the author. He took no issue with the incident rate for a fractured jaw to be .0049%.

[97] Exhibit 14 is the current University of Toronto text, Oral and Maxillofacial Surgery, Second Edition. On page 219, the authors state that a fracture of the mandible can occur and quote the rate set out above.

[98] On re-examination, Dr. McKean confirmed that he had received a typed version of Dr. Minett’s notes, subsequent to his reports and that he did not tell him anymore as to the procedure employed to extract tooth 48. The notes do not say how long it took to remove any one of the teeth. The review of these typed notes did not change his opinion.

DISCOVERY TRANSCRIPT READ INS

[99] At the discovery of Dr. Minett, the following answers were made and entered as evidence. The application of force caused the jaw to crack. Dr. Minett had no recollection of how many pieces he cut the crown into. Usually, he cuts the tooth in two, then perhaps into quarters. He did not know for sure if he did it in this case. He had no specific recollection of the removal of the tooth. He would cut once and then pry. He would have heard the jaw break, but does not recollect hearing it. He has no specific recollection of tooth 48.

Dr. Nick Blanas

[100] Dr. Blanas is an oral and maxillofacial surgeon and is the defendant’s expert witness. His curriculum vitae was filed as Exhibit 17. The plaintiffs took no issue with respect to him being qualified and to provide opinion evidence as to the standard of care of an oral surgeon on all aspects of tooth extraction, including recommendation, procedure, risks, known complications and their frequency. This witness was so qualified.

[101] Dr. Blanas was retained by the defendant to advise if Robert’s treatment reflected a reasonable standard of care and whether warnings were given with respect to risks.

[102] Dr. Blanas was certified as an oral surgeon in 2001 and is primarily based at Sunnybrook Hospital in Toronto. He is involved in managing facial injuries, teeth and corrective surgery, which include the reconstruction of jaws.

[103] He testified that he is a surgeon to whom difficult cases are referred. He also teaches at the dental school at the University of Toronto. He is a qualified examiner of oral and maxillofacial surgical candidates. He teaches the procedures for the extraction of wisdom teeth and the complications that may arise.

[104] Dr. Blanas testified that the extraction of wisdom teeth makes up 20% of his practice and that he has extracted thousands of wisdom teeth. He is familiar with the degree of impaction found in the wisdom teeth of Robert and said he has extracted hundreds of teeth similarly impacted. He has never fractured a jaw when extracting a wisdom tooth, but has had a few jaw fractures referred to him.

[105] Exhibit 9 is the reports of Dr. Blanas. In preparing his opinions, this witness relied on, in part, the clinical notes of the defendant and Dr. Krikorian. He had the x-rays taken by Dr. Krikorian, including the panoramic radiogram taken on January 16, 2002.

[106] Dr. Blanas described tooth 48, the lower right molar, as deeply impacted with associated bone loss as seen on the x-rays. There were also indicia of periodontal disease.

[107] With respect to tooth 38, on the lower left, there were similar issues and with respect to tooth 28, an upper molar, there again were similar issues, but to a lesser extent. He described the lower molars as deeply impacted and in close proximity to a nerve.

[108] He testified that the panoramic picture of tooth 48 shows it “into the side of tooth 47”.

[109] Dr. Blanas discussed the defendant’s notes. He referred to the entries dated March 16th where the defendant noted a history of fluid on the lower right side between teeth 47 and 48. This is indicative of an infection. The defendant also noted tenderness over teeth 38 and 48 which indicated chronic and/or acute infection and/or inflammation.

[110] It was this doctor’s opinion that the treatment proposed was reasonable because of the existence of infection and the history of the predisposition of infection. It was his opinion that the bone loss was a function of the infection and/or inflammation.

[111] Dr. Krikorian’s notes, Exhibit 5, included periodontal charting and that the information suggested Robert has had severe periodontal issues for at least seven years prior to the surgery. This history, in Dr. Blanas’ opinion, would have an adverse effect on the soft tissues and would result in progressive bone loss.

[112] Dr. Blanas opined that on the basis of Dr. Krikorian’s notes, he would have recommended the extraction. He testified that he would not change his opinion even if Robert was asymptomatic. The extraction of the wisdom teeth would eliminate the cause of infection, would stop the periodontal disease and should arrest the bone loss.

[113] With respect to the warning of risks, Dr. Blanas testified that he would tell his students to warn and discuss temporary risks that have a rate of occurrence of 5% or more. With respect to warning of permanent risks, it should be done for risks that have a probability of .05% or more.

[114] With respect to the risk of permanent nerve dysfunction, it happens to one out of 700 people and the risk of temporary nerve dysfunction is 5.2%. It was his opinion that nerves can be damaged even when exercising a reasonable standard of care.

[115] Dr. Blanas testified that the risk of a jaw fracture during the extraction of a wisdom tooth is much lower and suggests a rate of .00049%. This rate is referenced in the texts and can be found in Exhibit 14. The other risks of a lower wisdom tooth extraction are infection, dry socket, temporary or permanent injury to a nerve and damage to the adjacent teeth.

[116] In reviewing the notes of the defendant, Dr. Blanas noted the list of warnings found in the notes which included jaw fracture. The symbol “#” is a short form for “fracture”. Dr. Blanas does not routinely warn of the risk of jaw fracture and would not have given such a warning to Robert.

[117] With respect to Dr. McKean testifying that he never fractured a jaw when extracting a wisdom tooth, Dr. Blanas was not surprised by this statement as such fractures are rare. With respect to never having caused nerve damage, Dr. Blanas found that surprising and not supported by the literature. However, if the majority of extraction patients of Dr. McKean are in the 18-25 year old age group, they are less likely to have such complications, so the experience would not be unusual.

[118] With respect to Dr. McKean testifying as to his own experience, Dr. Blanas testified that this should be considered anecdotal and discounted. “Single operator” experiences, in his opinion, should bear little weight.

[119] It was the opinion of Dr. Blanas that the defendant met a reasonable standard of care with respect to the extraction of Robert’s wisdom teeth.

[120] Dr. Blanas described the procedure as first making an incision over the tooth to expose the underlying bone and then the removal of bone to get to the crown of the impacted tooth. The tooth would be cut into pieces and removed. He opined that the bone was locked into the tooth and that there were multiple divergent roots.

[121] Dr. Blanas stated that Dr. Minett took a surgical approach that involved the application of force in loosening the fragments. A surgeon uses his clinical judgment and experience as to how much force is to be applied. The surgeon starts with a minimal amount of force and gradually increases the force. Different teeth require different amounts of force.

[122] If the tooth has fused to the bone, generally more force is required. The denser the bone, the more force is required. In this case, there was such fusion which is called alkalosis.

[123] Dr. Blanas stated that force cannot be measured. He also stated that, in normal charting, the number of sections into which the tooth is cut is not included. Dr. Blanas does not indicate the number of sections in his notes.

[124] The jaw fracture in the case of Robert is referred to as a mandibular fracture and occurs when the force transferred to the bone exceeds the capacity of the bone. Dr. Blanas testified that, in the case of Robert, the degree of impaction was severe and there was, as noted, a fusion of tooth to bone. In the area of tooth 48 was a relatively small amount of residual lower jaw bone, given the bone loss. Periodontal disease results in bone loss and can weaken the jaw.

[125] Dr. Blanas opined that even a minimal amount of force can cause fractures. It was the opinion of this doctor that the records reflect that the correct technique was used by the defendant. The two other extractions occurred without complication and the predisposed factors likely caused the fracture with the application of minimal force.

[126] With respect to the residual numbness suffered by Robert, Dr. Blanas advised that this is a recognized complication of extraction.

[127] It was the opinion of Dr. Blanas that the defendant met the standard of care required of a dental oral surgeon in the extraction of tooth 48.

[128] It should be noted that, after the wires were removed from Robert’s mouth and jaw, a wire remained which Dr. Blanas referred to as an exterior border wire. He testified that this wire is not routinely removed, and over a patient’s life span, this wire is only removed in 10% of cases.

[129] Dr. Blanas was asked to comment on the opinion of Dr. McKean that the cause of the fracture was that the defendant did not ideally split the tooth. It was Dr. Blanas’ opinion that Dr. McKean was just theorizing and that the theory did not explain the fracture. Further, the ideal splitting of the tooth is a matter of clinical judgment.

[130] In cross-examination, Dr. Blanas confirmed that it is his opinion that the defendant used minimal force given the records and technique used. He acknowledged that, in his report, he stated that it was impossible to know how much force was applied. Dr. Blanas testified that force cannot be quantified and that, ultimately, only the defendant would know how much force was used.

[131] Dr. Blanas described the procedure as using a minimal amount of force during luxation and then gradually increasing the force, as required. Further, he said that you cannot determine the amount of force by the severity of the fracture. He agreed that jaw fractures are rare and that it may be possible to use less force by cutting the tooth into more sections.

[132] Dr. Blanas, during cross-examination, testified that the first cut of the tooth is memorable, but after that, a surgeon cannot accurately know how many further cuts are made, so this fact is not recorded. Dental students are not taught to record the number of sections a tooth is cut into.

[133] Dr. Blanas stated that, from the operative note, he could tell the tooth was sectioned, but did not indicate as to how many sections. He described the extraction of Robert’s number 48 tooth as difficult.

[134] Dr. Blanas agreed that it might be helpful to know if the patient was a musician. He usually has a patient complete a questionnaire and then he conducts an interview. He stated that it is not routine to ask about occupation, hobbies and interests, and that it is the trend to move away from questions about occupation.

[135] Dr. Blanas stated that, even if he knew that Robert had no symptoms at the time of extraction, his opinion would not change. It was reasonable to conduct the extraction. Robert’s was a strong case for extraction regardless of symptoms. He offered that the frequency of risks increases with age.

Charles Parker Minett

[136] The defendant Charles Parker Minett obtained his dentistry licence in 1973. In 1977, he started a three year residency program in oral and maxillofacial surgery at the University of Toronto and was licenced in this specialty in 1980. Since 1981, he has been a sole practitioner in Guelph. His practice includes the extraction of wisdom teeth, including very difficult and complex cases. He also consults with respect to jaw bone reconstruction and facial fractures, including mandibular fractures.

[137] Dr. Minett has hospital privileges at the Guelph General Hospital, as well as at a couple of regional hospitals.

[138] Dr. Minett also took a one year course at Toronto Western Hospital in facial nerve damage and the repair of such damage. He described himself as the person in Ontario, and most of Canada, with respect to nerve repair.

[139] Dr. Minett testified that 30% of his practice is the extraction of wisdom teeth and that 25 - 30% of the extractions is done at the hospital. He does 20 - 30 extractions per week and that 90% of his work is by referral.

[140] Dr. Minett is an adjunct professor at the University of Toronto and is associated as well with Mount Sinai Hospital in Toronto.

[141] Dr. Minett testified that he has no independent memory of his treatment of Robert. He stated that, on a daily basis, he does multiple complex procedures and that each day he refocuses. In the intervening years since Robert’s surgery, there have been multiple complex procedures and problems.

[142] Dr. Minett testified that he always makes detailed notes and charts to be able to refresh his memory later on if necessary. In Robert’s case, Dr. Minett has the following: pre- and post-surgery radiographs, handwritten clinical notes, a signed consent form, the hospital consultation note and the handwritten note back to Dr. Krikorian.

[143] Exhibit 20 is the panoramic radiograph taken January 16, 2006 by Dr. Krikorian; the picture of tooth 48 taken by Dr. Krikorian, January 16, 2006; a post-operative panoramic radiograph taken on May 11, 2006; and a further such film taken June 26, 2006.

[144] Exhibit 21 is the original handwritten clinical notes of Dr. Minett and Exhibit 15 is a typed copy of the same notes.

[145] The defendant testified that it is his invariable practice to make his notes contemporaneously, that is, during or immediately after a consultation or procedure. With respect to his surgeries, it is his invariable practice to make his notes immediately post-operatively.

[146] Chart 1 was started in March 2006 when Dr. Minett first met Robert. Chart 2 starts May 19, 2006 and continues to July 5, 2006.

[147] Exhibit 22 is a post-operative note sent by Dr. Minett to Dr. Krikorian. Exhibit 23 is the typed transcription consultation note of Dr. Minett dictated to the records department of the hospital as a result of Robert’s admission.

[148] Dr. Minett testified that, when a patient comes to his office for the first time, the patient is required to fill out an information form and then the patient meets with Dr. Minett for a consultation and review of the information. Dr. Minett provides the patient with an opinion as to the need for the surgery and discusses the procedure and the risks associated with it.

[149] Robert was referred to Dr. Minett for the extraction of his three remaining wisdom teeth. He testified that his notes indicate that Robert advised him of fluid on the lower right molar which is indicative of acute infection. Dr. Minett reviewed with Robert the x-rays and what they reveal. He stated that it is always his practice to pre-operatively review all the films.

[150] He testified that the films showed that, in regards to tooth 48, the roots were deep and ankylosed to the jaw. There was very little jaw under the tooth. The strength of the jaw was described as very thin which is unusual for a 39 year old. The tooth and nerve canal are a non-structural part of the jaw yet made up 80% of Robert’s jaw. Normally, these portions should make up 50% of the jaw bone of a 39 year old. He testified to significant periodontal bone loss and disease which he described as chronic and that it had been present for years. The extensive bone loss was as a result of the disease.

[151] For all these reasons, Dr. Minett recommended the extraction of the three wisdom teeth. He was in agreement with Dr. Krikorian in that regard. Otherwise, the problems would worsen. There would be a significant risk of a pathological fracture on the right side of the jaw.

[152] Dr. Minett testified that he had previously extracted wisdom teeth in these circumstances and that most of his extractions are of a complex nature.

[153] In review of his notes, Dr. Minett testified that he uses the panoramic x-ray and explained to Robert the procedure, risks and possible complications. He explained the procedure with respect to each of the three teeth to be extracted. He testified that he discussed that an incision is made in the tissue covering the tooth and that the area is exposed. He then makes a window in the bone around the tooth to provide surgical access. He would then need to subdivide the tooth, creating tooth fragments which are pulled out. The skin flap is then repositioned and sutured.

[154] Dr. Minett would then turn to discussing the risks. With respect to the lower teeth, he would say that the nerves can be damaged causing numbness for months or even a year. He would say that the vast majority heal themselves but in some cases the numbness can be permanent. Dr. Minett then testified that he would warn that a jaw fracture can occur, but that is rare. It can occur either during surgery or post-operatively when, for example, someone bites down on something hard before there is sufficient healing of the cavity from which a tooth was extracted.

[155] The clinical notes of Dr. Minett state the following:

OP (operative procedures); complications (possible intra-operative complications); sequelae (probable post-op sequelae) including swelling, bruising, limited oral opening, diet restrictions, recovery time, pain, post-op meds, and follow-up care) all explained, especially re possible sinus exposure or nerve injury or injury to adjacent teeth or jaw fracture.

These notes are found under the heading, Examination and Treatment and are dated 16/03/06 and are located on Chart 1, page 2; and the next entry is on page 3 and is dated, 12/07/06.

[156] The sequelae refer to things such as diet restrictions post-operatively. Dr. Minett testified that he has given this explanation thousands of times and then asks if the patient has any questions. Thereafter, if the patient is in agreement, he is taken to the front office to book an appointment for the surgery.

[157] The defendant testified that, in 2006, it was always his practice to disclose the risk relating to nerve damage, but that he would not invariably mention the risk of jaw fracture. He would so warn if the patient had issues like those of Robert’s.

[158] Robert’s jaw fracture was the first one experienced by Dr. Minett when conducting an extraction. He recalled that, during his residency at the University of Toronto, one of his colleagues fractured a jaw during extraction and that this left an impression on Dr. Minett that it could happen. He resolved to advise of the possibility in such a complex extraction and has done so since 1980.

[159] With respect to the day of the surgery, Exhibit 6 is the consent to surgery that Robert was asked to sign. Dr. Minett could not recall Robert saying he was a bagpipe player. Dr. Minett testified that, had he been so advised, it would have been noted in the chart. He testified that, even if he knew, it would not have changed the plan of extraction.

[160] The notes indicate that Robert was brought into the operating room at 12:10 p.m. and that they started measuring his vital signs at 12:13 p.m. Robert’s blood pressure was elevated. The vital sign readings are recorded by a nurse. Surgery commenced at 12:30 p.m.

[161] Dr. Minett testified that he admitted Robert to the hospital because the wiring of the jaw was not done in the hospital and that it would help with his recovery.

[162] Dr. Minett extracted the teeth in the following order: lower left, upper left, and finally lower right. The lower two teeth were sectioned and required substantial luxation because of the fusing of tooth root to bone. Further, the roots were wrapped around nerves. Dr. Minett described luxation as the use of a surgical instrument between the tooth and bone and carefully rotated to mobilize the tooth.

[163] Exhibit 22, the note by Dr. Minett to Dr. Krikorian, uses the word “significant”. Dr. Minett testified that this would mean significant luxation was needed. The first application of luxation did not mobilize the tooth, so the luxator had to be repositioned in a number of locations and rotated gently and progressively to move the tooth. The procedure depended on Dr. Minett’s judgment and touch.

[164] The luxating of tooth 48 caused a fracture of the right mandible at the base of the tooth socket. Dr. Minett testified that he would have heard the fracture; it would have been a crack or pop sound. The fracture was stabilized by wiring.

[165] Dr. Minett testified that the amount of force to be used in luxating is dictated by his judgment and experience. He stated he had already luxated and delivered the other two extractions, so he would have known how much force was required. With respect to tooth 48, he would have carefully and progressively applied force as with the other teeth.

[166] With respect to Robert’s hospitalization, Dr. Minett testified that it was standard protocol in a jaw wiring case to admit the patient to the step-down unit of the hospital. He testified that his notes indicate that he discussed with Karen the jaw fracture, the nerve involvement and the possible numbness and the possibility it might be permanent. He reviewed with her Robert’s dietary needs and post-operative needs.

[167] Dr. Minett visited Robert at the hospital the night of the surgery at 9:15 p.m.

[168] Dr. Minett’s clinical notes go on to reference the various consultations and follow up. The wires were removed on July 12, 2006. Robert’s last appointment with Dr. Minett was August 18, 2006. The next appointment was scheduled for November, but Robert failed to attend.

[169] At the conclusion of his direct examination, Dr. Minett testified that he concludes from his notes that he discussed the risks of surgery with Robert and that he does so routinely with all his patients. He says this is especially so, given his training in nerve damage and repair. He said that, if Robert had asked, “Why not leave them alone, I have no pain”, he would say that he would not change his recommendation. There was recent acute infection and periodontal disease that would only get worse. There was so little bone left that to leave it would risk pathological fracture.

[170] In cross-examination, Dr. Minett testified that his evidence was based on his notes and his regular practice as he had no independent recollection. He stated that, even if the infection was 11 months earlier instead of two months, he would have made the same recommendation.

[171] He stated that tooth 48 took up 80% of Robert’s jaw meaning that 80% of his jaw was non-structural and that, in cases of deeply impacted teeth like Robert’s, he would always warn of the risk of jaw fracture.

[172] With respect to the wire removal, Dr. Minett testified that, on July 12th, they removed the wire in the mouth, but left the jaw wire in permanently. He testified that he routinely tells patients of the internal wire which will be permanent.

[173] Dr. Minett testified that he had read in literature about the jaw being fractured during the course of an extraction, but admitted it is a rare event. He agreed that he knew such a fracture could attract a lawsuit, but that was the last thing on his mind during the surgery. He agreed that the subdivision of a tooth may result in the need for less force, but stated that all depended on his clinical judgment and experience.

[174] Dr. Minett testified that he tried to remove the tooth with the minimum of force to minimize the possibility of complications.

[175] The defendant was asked about his outstanding undertaking, given on his examination for discovery, to identify two of the nurses who might have been assisting that day. Dr. Minett could not recall the specific efforts made to obtain the names. He said he likely asked his staff. One of the nurses was identified in April 2012, but the surname could not be recalled.

[176] Dr. Minett clarified that Exhibit 23 is a transcription of the note he made verbally over the phone to the records department of the hospital.

[177] From his notes, the defendant was able to determine the surgery was completed at 3:00 p.m. He testified that, while he remembered the jaw fracture incident of a colleague while in residency, he cannot remember the details relating to Robert’s fracture. He said that is why he makes notes.

[178] The defendant testified that he never makes notes as to the number of sections when he cuts the tooth. He also testified that all three teeth were extracted successfully. He testified that there are three nurses who assist him with his surgeries.

Betty Beggs

[179] This witness is a nurse who started with Dr. Minett in 1985. In 2006, she was the office manager and assisted with surgeries as necessary. She testified that, with respect to Exhibit 3, the Consent to Operation signed by Robert, it is in her handwriting and signed by her, although her name has changed since then.

[180] Ms. Beggs testified that she reviews the procedure with the patient and then sees that it is signed. The patient is asked what they have had to eat since midnight and is asked to read the form. She explains to them the anaesthesia and asks what arrangements they have to get home. She asks if there has been any change in their medical history.

[181] Ms. Biggs testified that, in 2006 and prior, she has witnessed Dr. Minett explain the risks associated with the extraction of wisdom teeth. She did so, on occasion, for information purposes. She had heard the doctor explain the risks of nerve injury in the lip, tongue and/or the chin. It was pointed out that such things are usually temporary. She has heard of the risk of a fractured jaw when the teeth are deeply impacted. In Robert’s case, she was not involved in the actual surgery, but she knew his jaw was fractured.

[182] On cross-examination, she testified that it was her job to arrange a hospital admission when needed. She said that, including herself, there would have been five nurses available that day. Three would be associated with the operation, and one would be in recovery.

[183] Ms. Beggs testified that Kris Larson was one of the surgical nurses and that Joan Kreger was also there. Denise Marsa was another but that Joan and Denise are no longer working with Dr. Minett. She testified that they may or may not have been in Robert’s surgery, but that they worked a lot with Dr. Minett in 2006. She also referenced a nurse named Karen.

[184] Ms. Beggs had no specific recollection of reviewing the consent form with Robert. She said, if she was asked a question that she could not answer, she would tell the patient to ask the doctor.

[185] She testified that the patient is told of a risk of fracture, both during the operation and after.

Kristine Larson

[186] This witness has been in nursing since 1971 and started with Dr. Minett in 1982. In 2006, she was surgically assisting Dr. Minett during the operations.

[187] This witness testified that she has witnessed the discussion of risks between the doctor and a patient relating to impacted wisdom teeth. She has heard reference to the risk of nerve injury and jaw fracture. In regards to upper teeth, there is a risk related to the sinuses.

[188] Ms. Larson recalls Robert as a patient and recalls her duties were with respect to such things as assisting the doctor with suctioning and irrigating. She remembers hearing the noise of the jaw fracturing. She was familiar with the sound having heard it in surgeries involving a controlled fracture. She recalls the doctor remaining calm.

[189] This witness could not recall what other nurses were working that day, but did remember that Beth, Denise Marsa and Karen Bellamy worked at the office around that time. She also remembered Joan Kreger. She confirmed that Dr. Minett explained the risk of fracture, both during and after surgery, and that such caution was given routinely. She said that, on average, she listened in to such risk discussions a few times per week.

Karen Bellamy

[190] This witness has been a nurse since 1978 and worked with Dr. Minett in the 1980’s and went back to work with him in 1998 until June 2011. In 2006, her duties were to assist with surgery when necessary, clean instruments and also assist with post-op needs. She, too, has witnessed the discussion of risks with respect to tooth extraction. She would overhear such discussions if the door was left open. She heard reference to the risk of nerve damage, both temporary and permanent and the risk of jaw fracture.

[191] This witness recalls Robert’s surgery and it was her job to stand at the top of the bed and support Robert’s head as well as monitor vital signs. She recalls the fracture and how Dr. Minett wired the jaw, it being the first time she had ever seen a jaw wired up. She also recalls seeing Dr. Minett speak to Karen before they left for the hospital.

[192] On cross-examination, she said that Beth would have been working that day and so would Joan and Denise. She said that, on the day of the surgery, there was no discussion of risk. She does not recall that, during the discussion relating to the risk of fracture, whether the post-operative risk of fracture was discussed. She does recall, when discussing the risk of fracture, that the patient is told it is highly unlikely.

SUBMISSIONS

Plaintiffs

[193] Counsel for the plaintiffs submits that the circumstantial and direct evidence lead to the conclusion that the defendant was negligent. He submits that, while the doctrine of res ipsa loquitur is no longer applicable, the court can infer that, without the defendant’s negligence, Robert’s jaw would have broken. In that regard, he refers the court to the case, Fontaine v. British Columbia (Official Administrator) 1998 814 (SCC), [1998] 1 S.C.R. 424.

[194] Counsel submits that the evidence, on a balance of probabilities, establishes a prima facie case on behalf of the plaintiffs. The defendant is required to present evidence negating this prima facie case and, it is submitted, the defendant has not done so.

[195] Counsel for the plaintiffs asked me to draw an adverse inference with respect to two matters. The first is that Dr. Minett has no independent recollection of the events on May 11, 2006. The second is that the defendant failed to complete his undertaking by disclosing the names of the nurses who may have been working that day. The inference to be drawn is that the defendant is failing to disclose evidence which could be damaging to him.

[196] Counsel relies on the decision in Cooper v. Valakis, [2012] O.J. No. 361, a decision of the Supreme Court of Canada. He submits that, at paragraph 91, the Court set out the standard of care in medical malpractice cases. A physician must exercise the degree of skill expected of a normal prudent practitioner of the same experience and skill. If he is a specialist, a higher degree of skill is required.

[197] The court, at subsequent paragraphs, discusses the failure to adopt obvious and existing alternatives, conflicting expert opinion and the degree of foreseeable risk. As risk increases, so does the standard of care.

[198] Feist v. Gordon, [1990] A.J. No. 856, a decision of the Alberta Court of Appeal, is an authority relied upon by the plaintiff to argue that the circumstantial evidence can be used to make a finding of negligence which is not rebutted by the defendant. The Court determined that an inference can be made that the injury would not have occurred if proper care had been taken. The defendant was unable to offer an explanation consistent with a finding of no negligence (pg. 4).

[199] Robinson v. Sydenham District Hospital, [2000] O.J. No. 703 is a decision of the Ontario Court of Appeal. In this case, at paragraph 20, the court was of the view that very little affirmative evidence on the part of the plaintiff justifies drawing the inference of causation in the absence of evidence to the contrary.

[200] Counsel for the plaintiffs submits that the same principles apply to this matter. There is no issue that the application of force by the defendant to the wisdom tooth caused the fracture to Robert’s jaw. The plaintiffs submit that the circumstances of Robert’s surgery, because it was a complicated extraction, required a higher standard of care.

[201] The plaintiff argues that the defendant has no independent recollection of what occurred and relies solely on his notes and his usual practice. The notes do not help us to know into how many sections the tooth was divided, nor do we know the amount of force that was used. The plaintiffs submit, therefore, that there is a lack of particulars and that the fact the jaw was fractured, an admittedly rare occurrence, without further particulars, raises a prima facie case.

[202] The prima facie case has, in the opinion of the plaintiffs, not been rebutted. We have no insight into the amount of force that was used or into how many sections the tooth was cut. There are critical facts missing which would be necessary to determine if the appropriate standard of care was met.

[203] The plaintiffs submit that the opinion of McKean, together with the un-rebutted inferences, meet the burden of proof required to establish liability.

[204] As to the defendant’s lack of recollection, it is submitted that common sense would suggest that the circumstances around this case should have remained in the memory of the defendant. He had never broken a jaw before when extracting a wisdom tooth. Robert was in the surgical chair for hours, yet the defendant claims no memory of the events. The plaintiff submits the defendant is hiding certain facts. I am also asked to consider the fact that the defendant could not answer the undertaking given to use his best efforts to identify the possible nurses. It is submitted that, given the answers of the nurses called as witnesses, the identity of the nurses involved in the surgery was readily available.

[205] Counsel for the plaintiffs submits that the evidence of Dr. Blanas ought to be discounted. His ultimate opinion that the defendant used minimal force, based on the technique used, was not set out in his report.

[206] With respect to the signed consent, it is submitted that the defendant failed to determine Robert’s circumstances. Further, there is nothing to suggest that Robert understood the possible complications.

[207] Counsel for the plaintiffs appeared to concede that the evidence supports the conclusion that the surgery was called for, notwithstanding the fact that Robert was not suffering from any symptoms in the first part of 2006.

[208] With respect to damages, counsel for the plaintiffs submits the general damages for Robert are in the range of $50,000.00 to $75,000.00 and asks the court to consider the seriousness of the fracture, the fact that Robert’s jaw was immobilized for eight weeks and that Robert suffered a great deal of pain. Further, Robert was left with residual problems of numbness in his lip and chin that adversely impacts his ability to play the bagpipes.

[209] On the issue of general damages for pain and suffering, the plaintiffs provided the court with two decisions.

[210] Besic v. Kerenyi [2011] B.C.J. 1795, is a case involving an assault which resulted in a broken jaw and the loss of two teeth. The jaw had to be wired shut for one month.

[211] The long-term consequences of the injury included missing teeth, numbness, drooling and pain in the face and jaw. The court assessed his non-pecuniary damages at $20,000.00.

[212] Linnen v. Bradford [1993] A.J. No. 209 is a case involving negligent dental surgery. The defendant dentist conducted surgery on the plaintiff to correct a jaw joint problem, which resulted in a dislocated jaw during physiotherapy. The plaintiff was left with a limited range of movement and, among other things, she suffered pain, sensitivity to cold and heat and was unable to resume a normal diet. General damages were assessed at $75,000.00.

[213] With respect to Karen, it is submitted her damages for loss of care, guidance and companionship are in the range of $5,000.00 to $10,000.00. It is submitted that she had to care for Robert for those weeks.

[214] Counsel for the plaintiffs submits that the loss of wage claims and the claims for out of pocket expenses are reasonable. I am also to consider the OHIP subrogated claim.

Defendant

[215] Counsel for the defendant asks me to contrast the evidence made up of notes and records made at the time and the evidence of invariable practice to that of the evidence of the plaintiffs, which over time, has faded and has distorted.

[216] It is submitted that section 35 of The Evidence Act deems the doctor’s clinical notes and records as admissible evidence if the notes are done in the ordinary course of business. The necessary Notices of Intent to File were served and filed. The defendant submits that these notes should be received as prima facie proof of the facts contained therein. The case on Ares v. Venner, 1970 5 (SCC), [1970] S.C.J. No. 26, a decision of the Supreme Court of Canada, is relied on in that regard. The records are more objective evidence than memory evidence.

[217] Harrison v. Stephanny, [2002] B.C.J. No. 2648, is an example of the court accepting the record evidence over the plaintiffs’ evidence taken from memory. In that case, the plaintiff was adamant she would not have had the surgery if she knew of the possibility of the complication which, in fact, she suffered from. In that case, as well, the defendant doctor had no recollection of the circumstances of the surgery.

[218] Belknap v. Meakes, 1989 5268 (BC CA), [1989] B.C.J. No. 2187, is another decision of the British Columbia Court of Appeal, in which the evidentiary value of the doctor’s notes was considered. In that case, the doctor had no independent recollection of the events in issue. The court found that to be understandable. The court also determined that the evidence of invariable practice can be persuasive. The court accepted that the doctor’s practice was to warn of the risks of nerve damage and fracture.

[219] The court in the Belknap case ruled that the doctor’s records supported his invariable practice of giving such warnings and the evidence of his nurses corroborated the invariable practice.

[220] Counsel for the defendant submits that Robert’s memory is inaccurate and that he himself admitted to gaps in his memory. He could not recall filing any paperwork. He was unclear of what x-rays were taken and when. He could not recall the defendant taking any kind of history. It is submitted that Robert is a poor historian and that he has an unreliable memory. It is further submitted that Karen’s memory is also unreliable based on a number of things she could not remember, such as the defendant attending at the hospital later in the evening the day Robert was admitted.

[221] It is submitted by counsel for the defendant that, at trial, Karen testified that, on the March consultation date, Robert went into the consultation room alone. She remained in the reception area. After a time, Karen was taken into the consultation area. She was with her husband when the defendant reviewed the x-rays. At her discoveries, she testified that Robert looked at the x-rays with the doctor in her absence. It is submitted that her memory is unreliable.

[222] The defendant’s notes do not indicate that Karen was present for the consultation and that it is the defendant’s invariable practice to record who is present during the consultation.

[223] On the issue of expert evidence, the plaintiff submits the evidence of Dr. Blanas ought to be accepted over that of Dr. McKean and that very little weight should be attributed to the evidence of the plaintiffs’ expert.

[224] Dr. McKean is a general practitioner and not a certified oral and maxillofacial surgeon. It is submitted that his evidence, especially his second report, is biased and lacks objectivity. The case of Alfano v. Piersoanti, 2009 12799 (ON SC), [2009] O.J. No. 1224, is put forward as an authority for the proposition that experts are to be objective. It is submitted that Dr. McKean wrote his reports without understanding the defendant’s clinical notes, nor did he understand the complexity of the procedure. He described it as routine in his reports. He admitted he should have examined a diagnostic quality x-ray, something he did not do until after the commencement of the trial. He did admit, during his testimony, that the procedure was complicated and not routine.

[225] It is submitted that Dr. McKean could only testify as to his practice and experience and that is not evidence of the reasonable standard of care applicable in this matter.

[226] The defendant relies on the authority of Bafaro v. Dowd, [2008] O.J. No. 3474, which at paragraph 27, states that errors in judgment are not negligence. Further, it is submitted that, starting at paragraph 24, it is made clear that an outcome-based approach is flawed.

[227] Counsel submits that both Drs. McKean and Blanas agree that it is a matter of clinical judgment as to how many sections into which the tooth is to be cut, the amount of bone that is to be removed and as to how much force to apply in trying to mobilize the tooth.

[228] It is submitted, on behalf of the defendant, that there are three questions of law to be answered:

1. Did the defendant meet the standard of care required of an oral surgeon in making a treatment plan; and

2. During the surgery; and

3. Did Robert give an informed consent?

[229] As to the reasonableness of the plan, the burden of proof is that of the plaintiffs who did not lead any evidence as to the plan and its reasonableness. Dr. Blanas opined that the workup and the decision were reasonable and Dr. McKean did not suggest otherwise. He, too, would have recommended the extraction of the wisdom teeth. Further, as indicated previously, counsel for the plaintiffs conceded that the surgery was necessary.

[230] As to the standard of care during surgery, it is submitted that the burden of proof remains on the plaintiffs and that the plaintiffs failed to meet that burden. The defendant relies on the case of Carter v. Higashi, [1993] A.J. No. 915, and submits that it is identical, in many ways, to this matter. In that case, the plaintiff suffered a fractured jaw during an extraction. The doctor had not warned the plaintiff as to that risk. The plaintiff claimed the doctor was negligent in using excessive force.

[231] The evidence in that case was that all the dentists agree that the risk of a jaw fracture is so low that no warning is needed. Further, it was said that, while such a fracture is a rare case, it can occur with the normal application of force. At paragraph 30, the court ruled that the occurrence of the fracture does not give rise to an inference of excessive force.

[232] It is submitted that Robert’s three wisdom teeth were ankylosed, that is to say, fused to the bone. The first two wisdom teeth were extracted, without incident, which is evidence of the force that was used being reasonable.

[233] Fish v. Kapur, [1948] 2 All E.R. 176 also ruled that a jaw fracture does not give rise to an inference of negligence.

[234] It is submitted that the defendant’s lack of recollection does not permit the drawing of an adverse inference. Dr. Blanas testified that the procedure and steps employed by the defendant met the appropriate standard of care. He opined that the defendant took steps to minimize the force he used and that even minimal force could cause a fracture.

[235] It was submitted that the factors contributing to the fracture were the size of the roots, the fusing of the roots to the bone, the age of the patient, the reduced bone volume and the existence of periodontal disease.

[236] Stewart v. Ross, [1948] S.J. No. 153, is a case where the court commented on page 3 that the defendant had no personal recollection of the incident and that this was not unusual for oral surgeons. At page 4, the court stated that the risk of permanent numbness can happen, without negligence.

[237] As to the amount of force used by Dr. Minett and the number of sections he divided the tooth into, Dr. Blanas testified that such information is usually not recorded in the clinical notes.

[238] The defendant submits that damage to a nerve and the fracture of a jaw are known risks and the existence of which does not raise an inference of negligence or the use of excessive force. Even if excessive force was used, it would be a matter of clinical judgment. Negligence cannot be assumed based on consequences.

[239] In Powell v. Guttman, [1978] M.J. No. 45, the Manitoba Court of Appeal ruled that the misjudgment of the amount of force that was to be used which resulted in a femur fracture, was an error of judgment, which does not equate to negligence.

[240] With respect to informed consent, the defendant submits that he has an obligation to disclose all material risks and to obtain the consent of the patient to the procedure. He also has to ask questions of the patient. It is submitted that the defendant met or exceeded the disclosure obligation and that the proof of same is found in the clinical notes of the defendant.

[241] Robert signed the consent and admitted he did not read it before doing so. He trusted the defendant and would have authorized the defendant to do what, in the defendant’s judgment, should be done.

[242] Both experts agreed that they, in fact, would not have warned of the risk of jaw fracture. Therefore, it can be argued that the defendant exceeded his duty to disclose.

[243] It is submitted on behalf of the defendant that, even if the warning was insufficient, the risk of a jaw fracture was a mere possibility and that, in the case of Videto v. Kennedy, (1981) 1981 1948 (ON CA), 33 O.R. (2d) 497, stands for the proposition that risks that are only a mere possibility, need not be disclosed.

[244] Counsel for the defendant acknowledged that the risk of nerve damage should have been disclosed. They, of course, argue such disclosure was made. However, even if disclosure of this risk was inadequate, it is argued there is still no liability.

[245] A patient must demonstrate that he would not have consented to the surgery had he been properly informed. The issue then to determine is what would a reasonable plaintiff have done if faced with the same risk?

[246] It is submitted by the defendant that the plaintiff would have proceeded with the surgery. The surgery was necessary and Robert would have relied on the advice of his dentists. The plaintiff had previously had a wisdom tooth removed without incident. His family dentist recommended extraction. Karen had been successfully treated by the defendant. It is submitted that Robert would have proceeded even if he had been warned of the risk of permanent numbness.

[247] The defendant testified that he did not know Robert played the bagpipes. His counsel submits that it is the patient’s responsibility to advise of special circumstances and he did not do so. It is submitted that, even if the defendant had known, the treatment plan would have been the same and Robert would have agreed.

[248] I now turn to the defendant’s submissions on damages. It is submitted that the plaintiffs’ general damages are in the range of $25,000.00, plus or minus. A number of authorities were presented involving broken jaws and numbness of the lip and chin. The range of damages varied and, brought up to present day values, range from $4,500.00 to $26,900.00.

[249] With respect to Karen’s Family Law Act claim, the damages are estimated at no more than $2,000.00. As to special damages, it is submitted that, regardless of the fracture, there would have been some time off of work.

FINDINGS OF FACT, NEGLIGENCE AND DAMAGES

[250] In my opinion, the surgery was necessary and despite the fact that at all relevant times Robert was asymptomatic, the extraction of the wisdom teeth was a reasonable step. This was the conclusion of both expert witnesses and, in fact, the point was conceded by counsel for the plaintiffs. The risks associated with the extraction of these wisdom teeth are outweighed by the potential of damage had the teeth not been extracted.

[251] Dr. Krikorian recommended the surgery as did the defendant. Both expert witnesses recognized the existing bone loss associated with the history of periodontal disease and recognized the fact that the roots of tooth 48 had ankylosed with the bone. The tooth was impacted.

[252] Both experts agreed that, in 2006, Robert’s remaining three wisdom teeth required extraction.

[253] I now turn to the issue of informed consent. I accept that the defendant discussed with Robert the risks associated with the removal of wisdom teeth. Specifically, I find that the defendant did inform Robert of the risk of numbness and fracture and rely on the defendant’s clinical notes in that regard.

[254] I accept that the defendant’s notes accurately reflect the fact that such risks were disclosed and that such warnings and the keeping of notes is part of the invariable practice of the defendant.

[255] I also accept the evidence of the defendant and of his nurses as to his invariable practice.

[256] From paragraph 29 of the Bafaro v. Dowd decision, I quote: “It is well-established that the invariable practice of a professional can be given significant weight”. This decision is also authority for the test related to informed consent, which is, whether a reasonable person would have consented to the proposed treatment if the attendant risks and alternatives had been disclosed.

[257] Ares v. Venner, 1970 5 (SCC), [1970] S.C.J. No. 26 sets out that records, such as the defendant’s clinical notes made contemporaneously, should be received in evidence as prima facie of the facts stated therein.

[258] Harrison v. Stephany, [2002] B.C.J. No. 2648 is a case wherein the doctor had no recollection of the procedure, but kept detailed clinical notes. The notes were accepted and no fault was inferred from the doctor’s inability to recollect.

[259] In Belknap v. Meakes, [1989] B.C.J. No. 2182, at page 11, the British Columbia Court of Appeal found the doctor’s lack of recollection to be understandable, given there had been three years between the procedure and trial. From page 12, I quote:

If a person can say something he regularly does in his professional life that he invariably does in a certain way, that surely is evidence and possibly convincing evidence that he did it that way on the day in question.

[260] I accept that the notes of the defendant were made contemporaneously and provide objective evidence as to the disclosure of the risks in issue. I also accept the evidence of the defendant’s nurses who all acknowledged the keeping of such notes and that they had heard the defendant routinely advise of such risks, including jaw fracture, during extraction procedures.

[261] I do not accept the statement of Robert that, had he known of such risks, he would have declined the surgery. I find that conclusion to be outcome-based and find that such evidence is contrary to his past experiences and his reliance on dental advice.

[262] Clearly, he had relied on the past advice of his family dentist, Dr. Krikorian. Robert testified that he routinely accepted his dentist’s advice. He trusted his dentists. Robert agreed that, up to this incident, he relied on the advice of his dentists and it is noted he had had a wisdom tooth removed on an earlier occasion. He also accepted the advice of the defendant to have the teeth removed. He agreed that he could not remember all of what he discussed with the defendant and that he was likely told more than he can recall. Robert did recall being told that there was a risk to the adjacent teeth, which suggests that risks were, in fact, discussed.

[263] The risk of permanent numbness is low and the risk of a fractured jaw even lower and I accept that these risks were described as remote. I find it more in the keeping of Robert’s character that the risks in issue, given their likelihood, would have not stopped Robert from going ahead with the extraction of his three wisdom teeth, accepting the fact that the playing of the bagpipes was very important to Robert.

[264] Further, Karen had a good experience with the defendant and recommended to her husband that he retain the defendant for the extractions. She was not present with her husband for all his consultations with the defendant.

[265] At Exhibit 1, Tab 12(c) is a copy of the consent Robert signed to allow the defendant to proceed with the extractions. In that consent, Robert agreed to the extractions and acknowledged that, “The nature of, possible intra-operative complications of, and probable post-operative sequelae of said operation have been explained to and understood by me.”

[266] By signing the consent, Robert

‘authorized the defendant to perform such additional or alternative operative measures as he may determine, in his professional judgment, to be necessary and advisable during the course of the operation.’

[267] Robert testified that he did not read the consent, but that he did sign it. He agreed he was not pressured to sign the consent and that he was given ample time to review it. Betty Beggs, one of the defendant’s nurses, testified that she witnessed Robert signing the consent. She testified that she reviewed the procedure with Robert and that she asked him to read the form. I accept this evidence.

[268] Accordingly, Robert has to take some ownership in his decision to proceed with the procedure in the face of risks. Robert’s failure to read the consent is also evidence of his level of trust in regards to dentists in general, and that, regardless of the risks described, on the strength of the recommendations, he would have agreed to the extractions.

[269] While I have found that the relevant risks were discussed with the plaintiff, I will now discuss the scenario in which such risks were not disclosed. Would a reasonable person have consented to the proposed treatment if the attendant risks and alternatives had been disclosed? In my opinion, the answer is yes. As indicated, the risks of permanent nerve damage and a fractured jaw are not great and would have been described as such. Both experts testified that neither would have warned of the risk of a fractured jaw during an extraction. Therefore, I find that the standard of care to be met by the defendant on the issue of informed consent did not require him to disclose the risk of a fractured jaw. Further, given the health risks if the impacted wisdom teeth were not extracted, a reasonable person, even one who played the bagpipes, would have consented to same.

[270] I now turn to the issue of whether the defendant was negligent in his extraction of tooth 48 which, in fact, resulted in the permanent numbness and the jaw fracture.

[271] I accept the expert evidence of Dr. Blanas over that of Dr. McKean. While I found Dr. McKean was qualified to give expert evidence based on his experience, he did not have the foundation nor depth of knowledge comparable to Dr. Blanas’.

[272] Further, Dr. McKean’s report was lacking in substance. It was his opinion that, because he had never fractured a jaw or caused such nerve damage during his extractions, the defendant, by causing such damage, must have been negligent. With the greatest respect to Dr. McKean, I do not find such a conclusion to be very helpful. His opinion is based on the experience of only one oral surgeon - himself. He can hold himself out to be the sole basis on which the standard of care is determined.

[273] I also note the following. Prior to providing his first report, dated May 23, 2008, and found at Exhibit 8, Tab 1, the doctor had not completely deciphered the clinical notes of the defendant. He was unable to determine the meanings of the multiple short forms used by the defendant. Further, it was not until the second day of his testimony that Dr. McKean reviewed a “diagnostic quality” x-ray of Robert’s teeth. In his report, he therefore, described the extractions as routine, yet after reviewing the x-ray, changed his opinion to that of a complicated extraction. It is noted that he testified that this change of opinion did not change his ultimate opinion relating to the negligence of the defendant. However, it does suggest his first report was done without properly reviewing the evidence.

[274] He seemed to be unsure during his cross-examination of whether or not periodontal disease causes bone loss.

[275] Dr. McKean lacks that academic background and formal training of Dr. Blanas and the defendant. Both re-attended university to obtain the specialty qualification of oral and maxillofacial surgeon. Dr. McKean did not reference any text book authority relating to the risks of wisdom tooth extraction. The texts in evidence speak of both the risk of permanent nerve damage and jaw fracture and reference the probability of same, however remote.

[276] From MacKergor v. Potts, [2012] O.J. No. 1580, a decision of the Ontario Court of Appeal, I reference their review of the decision of the trial judge, at paragraph 46, in which he said:

I do not find Dr. McGrath’s opinion to be particularly helpful on this issue as he simply sets out the likelihood that Potts was negligent. Again, clinical probability must be considered in conjunction with all the other evidence.

The Court of Appeal found no error in the analysis of which included this quote.

[277] Dr. McKean’s conclusion in his first report is that the defendant is 100% liable for the fractured jaw, a conclusion which is obvious. The fracture occurred as the result of the amount of force the defendant used in luxating tooth 48. Of this there is no doubt, and no other cause was suggested. The issue is whether or not the defendant acted negligently in the procedure and the force he employed to remove the tooth.

[278] Dr. McKean’s second report, dated April 22, 2010, found at Exhibit 8, Tab 7, addresses the findings of Dr. Blanas’ report. Dr. McKean states, at the top of page 2:

Obviously if Dr. Minett, extracted the tooth properly, Mr. Dickie’s jaw would not have been broken and he would not have been left with a permanent disability, a numb lip.

He provides no rationale for this conclusion other than it never happened to him.

[279] Further down on page 2, Dr. McKean opines:

That Dr. Minett’s surgical technique was below the standards of the R.C.D.S.O.

He does not set out such standards in his report and, on cross-examination, agreed that the Royal College of Dental Surgeons of Ontario has no standards in this regard.

[280] Dr. Blanas is of the opinion that the defendant was not negligent in the extraction of tooth 48. The extraction of wisdom teeth makes up a large portion of his practice and usually involves complicated extractions.

[281] In his reports and his testimony, Dr. Blanas references the x-rays taken by Dr. Krikorian and described the tooth as deeply impacted with associated bone loss. He also indicated there is evidence of periodontal disease. He noted the molar was in close proximity to a nerve. He also noted that Robert had a history of tooth infection.

[282] These clinical findings are not included in Dr. McKean’s reports.

[283] Dr. Blanas testified that he would warn of permanent risks if they had a probability of .05%. He testified that permanent nerve damage occurs in one out of 700 patients. The rate of jaw fractures is .00049%. Dr. Blanas obtained these figures from dental texts excerpts of which can be found at Exhibit 14.

[284] Dr. Blanas also noted that the root of tooth 48 had ankylosed with the jaw bone, making the extraction more difficult. He described the surgical technique to be used and that the procedure was followed by the defendant. He acknowledged the tooth would be cut into sections for removal and that the surgeon uses clinical judgment and experience to determine how much force to use in mobilizing the tooth. More force is used when the roots and/or the tooth are fused to the jaw bone.

[285] Dr. Blanas testified that the tooth and surrounding tissue made up 80% of the lower jaw in the area of tooth 48 and that is unusually high. He described the residual lower jaw bone as low as a result of the bone loss due to periodontal disease.

[286] Such findings were not set out in the report of Dr. McKean.

[287] Dr. Blanas testified that the defendant’s notes indicate the proper technique was used. He agreed that the notes do not set out into how many sections the tooth was divided before extraction, but testified it is not the norm to set out such information in clinical notes. He noted that, in his opinion, the defendant did not use excessive force. The defendant had already removed the first two wisdom teeth without incident and testified that this is evidence of the defendant not using excessive force. He testified that a fracture can occur using minimal force.

[288] It was the opinion of Dr. Blanas that the defendant met the standard of care expected of an oral and maxillofacial surgeon. From paragraph 9 of Harrison v. Stephany, [2002] B.C.J. No. 2648, I quote:

Every medical practitioner is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.

[289] At paragraph 33 of Neuzen v. Korn, 1995 72 (SCC), [1995] S.C.J. No. 79, it is stated:

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field.

[290] The conclusions of Dr. Blanas were to a great extent built upon statistical data not included in the report of Dr. McKean. Nor did the reports and evidence of Dr. McKean express the findings specific to Robert as he presented as a patient pre-operatively. In my opinion, the depth of the impaction, fusing of the teeth to the bone, the history of infection, the existing periodontal disease and the resulting loss of jaw bone in the area of tooth 48, were critical and were not given much accord by Dr. McKean.

[291] I accept, therefore, the evidence of Dr. Blanas over that of Dr. McKean.

[292] The plaintiff submitted, as referenced above, that the fracture of the jaw and the permanent numbness, without reasonable explanation, are prima facie proof of causation. From Robinson v. Sydenham District Hospital Corporation [2000] O.J. No. 703, I quote paragraph 25

He correctly understood that an inference of causation may be drawn from the evidence even in the absence of scientific or medical certainty and, although the burden of proof remains on the plaintiff, an absence of evidence to the contrary adduced by the defendant will be weighed in the balance in determining what inferences should properly be drawn from the evidence.

[293] One of the authorities relied on by the plaintiff was Feist v. Gordon. From page 4, I quote:

The procedure was entirely under the control of the appellant and the crucial facts solely within his knowledge. The injury was one which in the ordinary course would not happen if proper care was taken to avoid it. Operating room records of subsequent surgery show no abnormality of the eyeball.

[294] In the case before me, as outlined above, there were a number of abnormalities in regards to tooth 48 and its extraction. Further, the accepted expert opined that proper care was provided by the defendant.

[295] From Bafaro v. Dowd, [2008] O.J. No. 3474, I quote from paragraph 22:

To succeed in an action for medical negligence, the plaintiff bore the onus of proving that the defendants had breached the standard of care of a reasonable and prudent doctor with the same training and experience, having regard to all the circumstances.

[296] From paragraph 27, I quote:

It is trite law that medical professionals cannot be held liable for mere errors of judgment, which are distinguishable from medical fault. An error in judgment does not amount to negligence where the physician appropriately exercises clinical judgment.

[297] And from paragraph 29, I quote:

It is well-established that the invariable practice of a professional can be given significant weight by the Court.

[298] The plaintiffs allege that the defendant used excessive force in extracting tooth 48 and state that nowhere in his clinical notes does the defendant reference the amount of force he used, nor the number of sections into which the tooth was cut. It is argued that the more cuts made to the tooth mean less force is required to remove the sections of the tooth.

[299] Dr. Blanas testified that force cannot be measured in such circumstances and, as set out above, the extraction of the other two teeth without incident is evidence of the reasonable use of force. He testified that the amount of force to be used and the number of cuts to be made to a tooth are matters of clinical judgment. Further, it is not the norm to record the number of cuts made to a tooth. Having preferred his evidence to that of Dr. McKean, I accept that opinion.

[300] If, in fact, the defendant should, in retrospect, have cut the tooth into more segments or did use excessive force, these would at best be matters of clinical judgment, perhaps errors in judgment, but would not amount to negligence.

[301] Again, I refer to the decision of Justice O’ Leary of the Alberta Queen’s Bench in the decision Carter v. Higashi. The plaintiffs alleged the defendant was negligent in the extraction in that he used excessive force, a departure from the required standard of care.

[302] With respect to the extraction, the plaintiff, in the Carter case, testified that the defendant was having difficulty with the tooth in issue and that he used a lot of force. The defendant had no recollection of the events that preceded the fracture. He testified to his normal procedure.

[303] At paragraph 30, Justice O’Leary stated:

I find that the defendant applied only a normal and reasonable degree of force or pressure to the elevator when attempting to section the lower right wisdom tooth. The expert evidence, which I accept, indicates that a jaw fracture can occur even where the degree of force applied is normal and reasonable in the circumstances. The occurrence of the fracture is therefore not sufficient in itself to justify an inference that excessive pressure was applied.

[304] I have accepted the evidence of Dr. Blanas that excessive force was not used by the defendant. He also testified that, even in the use of minimal force, a fracture can occur.

[305] There is no acceptable evidence that there was use of excessive force. I also find that the fracture itself and the resultant nerve damage is not sufficient themselves to justify an inference of excessive force.

[306] Dr. Blanas testified and was supported by statistical evidence that permanent nerve damage and a jaw fracture were known risks, albeit remote, in this type of extraction. The pathology, specific to the plaintiff, Robert, suggests that the risk was much more likely.

[307] I decline to find that the results are prima facie evidence of negligence. As stated, errors in judgment are not negligent. Even if such inference could be drawn at the completion of the plaintiffs’ case, it has been rebutted by the evidence of the defendant.

[308] As to the evidence of the defendant, Dr. Minett, I was not impressed by him as a witness. He struck me as arrogant and argumentative. Clearly, he was offended that his expertise was called into question. Having said that, however, he is entitled to rely on his clinical notes and record and his invariable practice as is this court. I do not find it unusual that he had no independent recollection given the passage of time and the number of extractions performed by the defendant. I will not draw an adverse inference because Dr. Minett had no independent recollection.

[309] His testimony of his invariable practice was corroborated by his nurses. I accept that his notes and his evidence reveal that the defendant employed the proper technique. This was also the opinion of Dr. Blanas.

[310] Nor will I draw an adverse inference from the fact that the defendant did not honour his undertaking as to disclosing prior to trial the identities of his nurses. Some of the identities were disclosed prior to trial and the nurses called as witnesses testified as to the identity of the nurses who were employed by the defendant at the relevant time and who may have been present during the surgery.

[311] I do not believe that the defendant used his best efforts to honour the undertaking. I would expect payroll records would assist in this regard, as well as simply asking his current employees. But given the testimony I have heard, I am not prepared to draw any inference that his failure to identify all the nurses suggests he is hiding something.

[312] It is the plaintiff who must prove the defendant, on a balance of probabilities, was negligent in the extraction of wisdom tooth number 48. They have not met that burden, so, on the issue of liability, the action is to be dismissed.

DAMAGES

[313] I accept that the injuries described herein occurred. There is no issue in that regard. Robert had his jaw fractured and wired shut for an eight-week period. He was hospitalized for a period thereafter and was in a great deal of pain. He was unable to work and lost a job as a result. He had to eat primarily liquids and was, for this extended period, miserable.

[314] I accept that, in relation to the fracture, as said by his wife, Karen, he was back to his old self within 10 weeks, being 2 weeks after the wires were removed.

[315] I accept the area of the jaw was tender for a more extended period up to a year. I accept that Robert is left with a permanent numbness to the right side of his lip and chin as a result of nerve damage caused by the jaw fracture.

[316] The effect of this numbness was further exacerbated by Robert’s love of playing the bagpipes, his enjoyment of competing as an individual and as a member of a band. He can no longer play the bagpipes with the proficiency he could prior to the incident.

[317] I assess Robert’s general damages for pain and suffering at $35,000.00. From a pain point of view, the period of real suffering was, as stated, 10 weeks. The real compensatory issue relates to his inability to play the bagpipes, something that he had done since he was a child.

[318] The cases relied on by the plaintiffs describe what I believe to be symptoms and conditions more serious than those of Robert. He is, however, left with a permanent numbness of the lower lip and chin which have impacted in a meaningful way with his lifestyle.

[319] With respect to his lost wages, Robert would have missed some time from work regardless and I would fix this period at three days. Exhibit 1, Tab 7, sets out the wage loss and I would reduce that by $751.92, being 24 hours of work at $31.33 per hour. The total wage loss is assessed at $10,526.88.

[320] I accept the out-of-pocket expenses as set out at Exhibit 1, Tab 9 and assess them to be $287.62.

[321] I will not award this plaintiff the cost of the surgery. Two teeth were extracted without incident and the third tooth was extracted as well. The extractions were required. Further, a large part of the expense was covered by benefits, leaving a balance of $424.73

[322] I accept as a head of damage, the OHIP subrogated claim and assess it at $2,240.45 as set out in Exhibit 1, Tab 10.

[323] With respect to Karen’s claim for general damages, for the loss of care, guidance and companionship, I assess these damages at $3,500.00. She had to endure her husband for those eight weeks he was in pain as a result of his fractured jaw. She would have had to attend his needs as well as maintain herself and her employment.

[324] As to Karen’s lost wage claim, I accept that she was to go to work on the evening of her husband’s surgery. She expected he would be able to care for himself. She worked as a custodian for a school board and started work at the end of the school day. I assess her damages at $651.48 as set out in Exhibit 1, Tab 8.

[325] Accordingly, I assess the damages as set out above and dismiss the plaintiffs’ action.

[326] Counsel can address the issue of costs. The defendant’s submissions are to be made within 21 days following the release of this judgment, and the plaintiffs’ 10 days thereafter.

COURT FILE NO.: 361/08 DATE: 2012-09-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROBERT DICKIE and KAREN DICKIE Plaintiffs

• and –

CHARLES MINETT Defendant

REASONS FOR JUDGMENT

Bielby J.

Released: September 14, 2012